Citation NR: 9625585
Decision Date: 09/13/96 Archive Date: 09/15/96
DOCKET NO. 95-09 537 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for a left knee
disorder, to include arthritis, either on a direct basis or
claimed to be due to Agent Orange exposure.
2. Entitlement to service connection for a right knee
disorder, to include arthritis, either on a direct basis or
claimed to be due to Agent Orange exposure.
3. Entitlement to service connection for a bilateral ankle
disorder, to include arthritis, either on a direct basis or
claimed to be due to Agent Orange exposure.
4. Entitlement to service connection for a bilateral hip
disorder, to include arthritis, either on a direct basis or
claimed to be due to Agent Orange exposure.
5. Entitlement to service connection for a disorder of the
feet, to include arthritis, either on a direct basis or
claimed to be due to Agent Orange exposure.
6. Entitlement to service connection for a disorder of the
digestive system, to include gastritis, esophagitis and
ulcers.
7. Entitlement to service connection for a skin disorder,
claimed to be due to Agent Orange exposure.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. Acosta, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1967 to
October 1971.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a December 1994 rating decision of the
Department of Veterans Affairs (VA) Montgomery, Alabama,
Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection is warranted for
a bilateral knee disorder, a bilateral ankle disorder, a
bilateral hip disorder and a disorder of the feet, to include
arthritis in each case, either on a direct basis or due to
Agent Orange exposure. He also contends that service
connection is warranted for a digestive disorder, to include
gastritis, esophagitis and ulcers, on a direct basis, and for
a skin disorder, claimed to be due to Agent Orange exposure.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the veteran has not submitted well-grounded claims for
service connection for a bilateral knee disorder, a bilateral
ankle disorder, a bilateral hip disorder and a disorder of
the feet, to include arthritis, either on a direct basis or
due to Agent Orange exposure. It is also the decision of the
Board that the veteran has not submitted well-grounded claims
for a disorder of the digestive system, to include gastritis,
esophagitis and ulcers, on a direct basis, and for a skin
disorder, claimed to be due to Agent Orange exposure.
Accordingly, the veteran’s claims for service connection for
such disorders fail.
FINDINGS OF FACT
1. The veteran had active service in Vietnam during the
Vietnam era.
2. A left knee disorder, to include arthritis, is not shown
by the competent medical evidence of record to have been
diagnosed during the veteran’s period of active military
service.
3. Arthritis of the knees, ankles, hips or feet was not
diagnosed within one year of the veteran’s separation from
active service.
4. There is no competent medical evidence of record of a
nexus between a currently-manifested left knee osteoarthritis
and an inservice occurrence or event, including Agent Orange
exposure.
5. A right knee disorder, to include arthritis, is not shown
by the competent medical evidence of record to have been
diagnosed during the veteran’s period of active military
service.
6. There is no competent medical evidence of record of a
currently-manifested right knee disorder, to include
arthritis, or of a nexus between such a disorder and an
inservice occurrence or event, including Agent Orange
exposure.
7. A bilateral ankle disorder, to include arthritis, is not
shown by the competent medical evidence of record to have
been diagnosed during the veteran’s period of active military
service.
8. There is no competent medical evidence of record of a
currently-manifested bilateral ankle disorder, to include
arthritis, or of a nexus between such a disorder and an
inservice occurrence or event, including Agent Orange
exposure.
9. A bilateral hip disorder, to include arthritis, is not
shown by the competent medical evidence of record to have
been diagnosed during the veteran’s period of active military
service.
10. There is no competent medical evidence of record of a
currently-manifested bilateral hip disorder, to include
arthritis, or of a nexus between such a disorder and an
inservice occurrence or event, including Agent Orange
exposure.
11. A disorder of the feet, to include arthritis, is not
shown by the competent medical evidence of record to have
been diagnosed during the veteran’s period of active military
service.
12. There is no competent medical evidence of record of a
currently-manifested disorder of the feet, to include
arthritis, or of a nexus between such a disorder and an
inservice occurrence or event, including Agent Orange
exposure.
13. A disorder of the digestive system is not shown by the
competent medical evidence of record to have been diagnosed
during the veteran’s period of active military service.
14. A duodenal ulcer is not shown by the competent medical
evidence of record to have been diagnosed within one year
from the veteran’s separation from active military service.
15. There is no competent medical evidence of record of a
nexus between a currently-manifested disorder of the
digestive system and an inservice occurrence or event.
16. A skin disorder is not shown by the competent medical
evidence of record to have been diagnosed during the
veteran’s period of active military service.
17. There is no competent medical evidence of record of a
currently-manifested skin disorder, or of a nexus between
such a disorder and an inservice occurrence or event,
including Agent Orange exposure.
CONCLUSIONS OF LAW
1. The veteran has not submitted evidence of a well-grounded
claim of entitlement to service connection for a left knee
disorder, to include arthritis, either on a direct basis or
claimed to be due to Agent Orange exposure. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1116, 5107(a) (West 1991);
38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1995).
2. The veteran has not submitted evidence of a well-grounded
claim of entitlement to service connection for a right knee
disorder, to include arthritis, either on a direct basis or
claimed to be due to Agent Orange exposure. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1116, 5107(a) (West 1991);
38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1995).
3. The veteran has not submitted evidence of a well-grounded
claim of entitlement to service connection for a bilateral
ankle disorder, to include arthritis, either on a direct
basis or claimed to be due to Agent Orange exposure.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107(a) (West
1991); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1995).
4. The veteran has not submitted evidence of a well-grounded
claim of entitlement to service connection for a bilateral
hip disorder, to include arthritis, either on a direct basis
or claimed to be due to Agent Orange exposure. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1116, 5107(a) (West 1991);
38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1995).
5. The veteran has not submitted evidence of a well-grounded
claim of entitlement to service connection for a disorder of
the feet, to include arthritis, either on a direct basis or
claimed to be due to Agent Orange exposure. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1116, 5107(a) (West 1991);
38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1995).
6. The veteran has not submitted evidence of a well-grounded
claim of entitlement to service connection for a disorder of
the digestive system, to include gastritis, esophagitis and
ulcers. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107(a) (West
1991); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1995).
7. The veteran has not submitted evidence of a well-grounded
claim of entitlement to service connection for a skin
disorder, claimed to be due to Agent Orange exposure.
38 U.S.C.A. §§ 1110, 1113, 1116, 5107(a) (West 1991);
38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question to be answered at the outset of the
analysis of any issue is whether the appellant’s claim is
well-grounded; that is, whether it is plausible, meritorious
on its own, or otherwise capable of substantiation. Murphy
v. Derwinski, 1 Vet.App. 78 (1990). The United States Court
of Veterans Appeals (Court) has said that the statutory “duty
to assist” under 38 U.S.C.A. § 5107(a) (West 1991) does not
arise until there is a well-grounded claim. Gilbert v.
Derwinski, 1 Vet.App. 49, 55 (1990).
The question of whether or not a claim is well-grounded is
significant because if a claim is not well-grounded, the
Board does not have jurisdiction to adjudicate that claim.
Boeck v. Brown, 6 Vet.App. 14, 17 (1993). In this regard,
the Court has observed that the statutory prerequisite of
submitting a “well-grounded” claim “reflects a policy that
implausible claims should not consume the limited resources
of the VA and force into even greater backlog and delay
claims which --as well-grounded-- require adjudication ... .
Attentiveness to this threshold issue is, by law, not only
for the Board but for the initial adjudicators, for it is
their duty to avoid adjudicating implausible claims at the
expense of delaying well-grounded ones.” Grivois v. Brown, 6
Vet.App. 136, 139 (1994).
A veteran has, by statute, the duty to submit evidence that a
claim is well-grounded. The evidence must “justify a belief
by a fair and impartial individual” that the claim is
plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such
evidence is not submitted, the claim is not well-grounded,
and the initial burden placed on the veteran is not met.
Tirpak v. Derwinski, 2 Vet.App. 609 (1992). In order for a
claim for service connection to be well grounded, there must
be competent evidence of a current disability (a medical
diagnosis), of incurrence or aggravation of a disease or
injury in service (lay or medical evidence), and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498, 506 (1995).
Evidentiary assertions by the veteran must be accepted as
true for the purposes of determining whether a claim is well-
grounded, except where the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet.App. 19, 21 (1993).
Where the issue is factual in nature, e.g., whether an
incident or injury occurred in service, competent lay
testimony, including a veteran's solitary testimony, may
constitute sufficient evidence to establish a well-grounded
claim under [38 U.S.C.A. §] 5107(a). See Cartright v.
Derwinski, 2 Vet.App. 24 (1991). However, where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is "plausible" or "possible" is required. See Murphy
v. Derwinski, 1 Vet.App. 78, 81 (1990). Furthermore,
"Congress specifically limits entitlement for
service-connected disease or injury to cases where such
incidents have resulted in a disability. See 38 U.S.C.A.
§ 1110 (West 1991). In the absence of proof of a present
disability there can be no valid claim." Brammer v.
Derwinski, 3 Vet.App. 223, 225 (1992).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110 (West 1991). In addition, a
chronic, tropical, or prisoner-of-war related disease, or a
disease associated with exposure to certain herbicide agents
listed in 38 C.F.R. § 3.309 (1995) will be considered to have
been incurred in service under the circumstances outlined in
this section even though there is no evidence of such disease
during the period of service. No condition other than one
listed in 38 C.F.R. § 3.309(a) (1995) will be considered
chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991);
38 C.F.R. §§ 3.307, 3.309 (1995).
Arthritis and peptic ulcers (gastric or duodenal) are
considered to be chronic diseases. 38 C.F.R. § 3.309(a)
(1995). Service connection may be warranted for arthritis or
peptic ulcers (gastric or duodenal) if there is competent
evidence that either one became manifest to a degree of 10
percent or more within one year from the veteran’s date of
separation from service. 38 C.F.R. § 3.307(a)(3), (4) (1995).
If a veteran was exposed to an herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 C.F.R.
§ 3.307(a)(6)(ii) (1995) are met, even though there is no
record of such disease during service, provided further that
the rebuttable presumption provisions of 38 C.F.R. § 3.307(d)
(1995) are also satisfied: chloracne or other acneform disease
consistent with chloracne, Hodgkin's disease, multiple
myeloma, Non-Hodgkin's lymphoma, porphyria cutanea tarda,
respiratory cancers (cancer of the lung, bronchus, larynx, or
trachea), and soft-tissue sarcoma (other than osteosarcoma,
chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R.
§ 3.309(e) (1995).
The diseases listed at 38 C.F.R. § 3.309(e) (1995) (associated
with exposure to an herbicide agent, such as Agent Orange)
shall have become manifest to a degree of 10 percent or more
at any time after service, except that chloracne or other
acneform disease consistent with chloracne and porphyria
cutanea tarda shall have become manifest to a degree of 10
percent or more within a year, and respiratory cancers within
30 years, after the last date on which the veteran was exposed
to an herbicide agent during active military, naval, or air
service. 38 C.F.R. § 3.307(a)(6)(ii) (1995).
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit recently determined that the
Veterans' Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542,
§ 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a
veteran from establishing service connection with proof of
actual direct causation. Combee v. Brown, 34 F. 3d 1039
(Fed.Cir. 1994).
After reviewing the evidentiary record concerning the issues
hereby on appeal, the Board concludes that none of the
veteran’s claims is well-grounded, and that, accordingly,
they all fail.
1. Service connection for a left knee disorder, to include
arthritis,
either on a direct basis
or claimed to be due to Agent Orange exposure
The veteran’s entrance report of medical examination, dated
in September 1967, shows that his lower extremities were
clinically evaluated as normal. His report of medical
history of same date shows that he denied ever having had or
currently having swollen or painful joints, history of broken
bones, arthritis or rheumatism, a bone, joint or other
deformity, or “trick” or locked knee. No complaints or
diagnosis of a left knee disorder, to include arthritis, were
noted at the time.
The veteran’s service medical records show no complaints of,
or treatment for, a left knee disorder, to include arthritis.
The veteran’s separation report of medical examination, dated
in September 1971, shows that his lower extremities were
clinically evaluated as normal. No complaints or diagnosis
of a left knee disorder, to include arthritis, were noted at
the time.
The record also lacks any evidence of arthritis of the left
knee becoming manifest to a degree of 10 percent or more
within one year from the veteran’s separation from active
service.
The first evidence of record of any complaints of, and
treatment for, left knee problems consists of a private
medical record from an orthopedist, dated in March 1988,
almost 17 years after the veteran’s release from active duty.
This record shows that the veteran complained of left knee
pain after having twisted the knee the day before. The
veteran reportedly indicated that he had had a left knee
arthroscopy in 1986 and that he had been diagnosed with
having a frayed ligament and a bad cartilage at that time.
No reference to any problems with the left knee prior to 1986
was noted, though. The examiner noted at the time that the
veteran had X-Ray-verifiable left knee osteoarthritis,
primarily along the medial compartment.
A private medical record from an orthopedist, dated in
January 1989, shows that the veteran stated that his foot had
slipped and his left knee had gone into hyperextension as the
foot was dorsiflexed, while stepping up on a steel grate two
days before. The examiner noted some swelling -not severe,
though- in the left knee, but there was no instability and no
positive “Lachman” or Drawer signs. The veteran, who was
noted not to be able to extend the knee through the last 5, 6
or 7 degrees, was reportedly placed in a “TED stocking and a
knee sleeve.”
A private medical record, also dated in January 1989 (one
week after the aforementioned record), shows that the
veteran’s left knee was not causing him any trouble, although
he still lacked 7 or 8 degrees of full extension, which the
veteran reportedly thought was about as straight as he could
get his leg after the previous surgery. Flexion was measured
to 90 or 100 degrees and he was noted to lack instability
medially or laterally, and to have a negative “Lachman” sign.
Some effusion was felt to exist due to an increased
circumference.
In a statement dated in October 1994, a private general
surgeon indicated that the veteran had complained of
arthralgia of the legs, and that the veteran attributed it
to Agent Orange exposure. No objective findings or diagnosis
related to an alleged left knee disorder were stated,
however.
Finally, the record shows that a hearing was conducted at the
RO in June 1995. A transcript of said hearing shows that the
veteran’s testimony included the following allegations:
1. He first started experiencing
symptoms of swelling and aching of all
his joints in October 1967, while in
“boot camp,” before going to Vietnam.
Said symptoms had not been manifested
before service.
2. He was told in the military that he
had arthritis.
3. He was given aspirin, “or something
like Tylenol,” during service, to treat
the swelling and aching of the joints.
4. He had “flare ups” about once a month
during service. He was never
hospitalized for said “conditions” or had
to wear knee braces during service,
though.
5. Upon his return from Vietnam, the
left knee “flared up” and he was told
that he had a torn cartilage or ligament.
He was put in a cast from his ankle to
his hip, which he had on for six weeks.
Specifically, this occurred in 1986.
6. Arthroscopy surgery was performed on
the left knee after service.
7. He heard that Agent Orange exposure
could cause arthritis.
8. He was exposed to Agent Orange during
service, while stationed in DaNang,
Vietnam. Such exposure worsened his
joints problems.
9. He could not remember if X-Rays were
taken of the left knee during service.
However, he was prescribed “something for
arthritis” during service.
The Board finds the veteran’s claim to be not well-grounded.
The criteria for such a claim, as dictated by Caluza, have
not been fully met: there is no competent medical evidence
of record of a left knee disorder manifested during service,
or within one year from the veteran’s separation from active
service, or of a nexus between the currently-manifested
osteoarthritis of the left knee (which, according to the
record, was initially diagnosed almost 17 years after the
veteran’s separation) and an inservice occurrence or event.
38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown,
7 Vet.App. 498, 506 (1995). In addition, there is no
evidence of record of the current manifestation of one of the
diseases attributable to Agent Orange exposure. 38 C.F.R.
§ 3.309(e) (1995).
The Board notes that the veteran’s June 1995 statements to
the effect that he experienced constant swelling and aching
of all the joints during service, that he was told during
service that he had arthritis, that he had “flare ups” about
once a month and was exposed to Agent Orange during service,
while stationed in DaNang, Vietnam, and that such exposure
worsened an alleged left knee condition, are simply not
supported by the evidence of record. As indicated above, the
veteran’s service medical records, to include his entrance
and separation reports of medical examination and medical
history, show no complaints of, or treatment for, any left
knee problems or a left knee disorder, to include arthritis.
The Board also finds that the veteran’s statement of medical
causation between alleged Agent Orange exposure and an
alleged inservice left knee disorder are not probative of the
issue hereby on appeal because lay persons (i.e., persons
without medical expertise) are not competent to offer medical
opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit
v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2
Vet.App. 492 (1992).
Furthermore, lay assertions of medical causation cannot
constitute evidence to render a claim well-grounded.
Grottveit v. Brown, 5 Vet.App. 91 (1993). Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is “plausible” or “possible” is required. Id.
Where a claim is not well grounded it is incomplete, and VA
is obliged under 38 U.S.C.A. § 5103(a) (West 1991) to advise
the claimant of the evidence needed to complete his
application. Robinette v. Brown, 8 Vet.App. 69 (1995). In
this instance, the Board’s decision informs the veteran that
he needs to submit competent medical evidence of a nexus
between the currently-manifested left knee osteoarthritis and
an inservice occurrence or event, to include Agent Orange
exposure, in order for his claim to be well-grounded.
2. Service connection for a right knee disorder, to include
arthritis,
either on a direct basis
or claimed to be due to Agent Orange exposure
As indicated above, the veteran’s entrance report of medical
examination, dated in September 1967, shows that his lower
extremities were clinically evaluated as normal, and his
report of medical history of same date shows that he denied
ever having had or currently having swollen or painful
joints, history of broken bones, arthritis or rheumatism, a
bone, joint or other deformity, or “trick” or locked knee.
No complaints or diagnosis of a right knee disorder, to
include arthritis, were noted at the time.
The veteran’s service medical records show no complaints of,
or treatment for, a right knee disorder, to include
arthritis.
The veteran’s separation report of medical examination, dated
in September 1971, shows that his lower extremities were
clinically evaluated as normal. Again, no complaints or
diagnosis of a right knee disorder, to include arthritis,
were noted at the time.
The record also lacks any evidence of arthritis of the right
knee becoming manifest to a degree of 10 percent or more
within one year from the veteran’s separation from active
service.
In a statement dated in October 1994, a private general
surgeon indicated that the veteran had complained of
arthralgia of the legs, and that the veteran attributed it to
Agent Orange exposure. No objective findings or diagnosis
related to an alleged right knee disorder were stated,
however.
As noted in detail in the previous section of this decision
where the left knee issue was discussed, the transcript of
the June 1995 RO hearing shows that the veteran indicated
that he had had problems with both legs, for which he
received medical treatment, that he had been diagnosed with
arthritis, and that he was exposed to Agent Orange, during
service.
The Board finds the veteran’s claim to be not well-grounded.
The criteria for such a claim, as dictated by Caluza, have
not been fully met: there is no competent medical evidence
of record of a right knee disorder manifested during service,
or within one year from the veteran’s separation from active
service, or currently. 38 U.S.C.A. § 5107(a) (West 1991);
Caluza v. Brown, 7 Vet.App. 498, 506 (1995). In addition,
there is no evidence of record of the current manifestation
of one of the diseases attributable to Agent Orange exposure.
38 C.F.R. § 3.309(e) (1995).
The veteran’s statements during the June 1995 RO hearing are
not supported by the evidence of record. As indicated above,
the record lacks any competent evidence of right knee
problems, or of a diagnosis of a right knee disorder, to
include arthritis, either during or after service.
The Board also finds that the veteran’s statement of medical
causation between alleged Agent Orange exposure and an
alleged inservice right knee disorder are not probative of
the issue hereby on appeal because lay persons (i.e., persons
without medical expertise) are not competent to offer medical
opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit
v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2
Vet.App. 492 (1992).
Furthermore, lay assertions of medical causation cannot
constitute evidence to render a claim well-grounded.
Grottveit v. Brown, 5 Vet.App. 91 (1993). Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is “plausible” or “possible” is required. Id.
Where a claim is not well grounded it is incomplete, and VA
is obliged under 38 U.S.C.A. § 5103(a) (West 1991) to advise
the claimant of the evidence needed to complete his
application. Robinette v. Brown, 8 Vet.App. 69 (1995). In
this instance, the Board’s decision informs the veteran that
he needs to submit competent medical evidence of a currently-
manifested right knee disorder and of a nexus between it and
an inservice occurrence or event, to include Agent Orange
exposure, in order for his claim to be well-grounded.
3. Service connection for a bilateral ankle disorder, to
include arthritis,
either on a direct basis
or claimed to be due to Agent Orange exposure
As indicated above, the veteran’s entrance report of medical
examination, dated in September 1967, shows that his lower
extremities were clinically evaluated as normal, and his
report of medical history of same date shows that he denied
ever having had or currently having swollen or painful
joints, history of broken bones, arthritis or rheumatism, a
bone, joint or other deformity. No complaints or diagnosis
of a bilateral ankle disorder, to include arthritis, were
noted at the time.
The veteran’s service medical records show no complaints of,
or treatment for, a bilateral ankle disorder, to include
arthritis.
The veteran’s separation report of medical examination, dated
in September 1971, shows that his lower extremities were
clinically evaluated as normal. Again, no complaints or
diagnosis of a bilateral ankle disorder, to include
arthritis, were noted at the time.
The record also lacks any evidence of arthritis of the ankles
becoming manifest to a degree of 10 percent or more within
one year from the veteran’s separation from active service.
In a statement dated in October 1994, a private general
surgeon indicated that the veteran had complained of
arthralgia of the legs, and that the veteran attributed it to
Agent Orange exposure. No objective findings or diagnosis
related to an alleged bilateral ankle disorder were stated,
however.
The transcript of the June 1995 RO hearing shows that the
veteran indicated that all the joints of his body swelled and
ached during service, that he had been told that he had
arthritis, and that he had been exposed to Agent Orange,
during service.
The Board finds the veteran’s claim to be not well-grounded.
The criteria for such a claim have not been fully met: there
is no competent medical evidence of record of a bilateral
ankle disorder manifested during service, or within a year
from the veteran’s separation from active service, or
currently. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v.
Brown, 7 Vet.App. 498, 506 (1995). In addition, there is no
evidence of record of the current manifestation of one of the
diseases attributable to Agent Orange exposure. 38 C.F.R.
§ 3.309(e) (1995).
The Board also finds that the veteran’s statement of medical
causation between alleged Agent Orange exposure and an
alleged inservice bilateral ankle disorder are not probative
of the issue hereby on appeal because lay persons (i.e.,
persons without medical expertise) are not competent to offer
medical opinions. Moray v. Brown, 5 Vet.App. 211 (1993);
Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v.
Derwinski, 2 Vet.App. 492 (1992).
Furthermore, lay assertions of medical causation cannot
constitute evidence to render a claim well-grounded.
Grottveit v. Brown, 5 Vet.App. 91 (1993). Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is “plausible” or “possible” is required. Id.
Where a claim is not well grounded it is incomplete, and VA
is obliged under 38 U.S.C.A. § 5103(a) (West 1991) to advise
the claimant of the evidence needed to complete his
application. Robinette v. Brown, 8 Vet.App. 69 (1995). In
this instance, the Board’s decision informs the veteran that
he needs to submit competent medical evidence of a currently-
manifested bilateral ankle disorder and of a nexus between it
and an inservice occurrence or event, to include Agent Orange
exposure, in order for his claim to be well-grounded.
4. Service connection for a bilateral hip disorder, to
include arthritis,
either on a direct basis
or claimed to be due to Agent Orange exposure
The veteran’s entrance report of medical examination, dated
in September 1967, shows that his musculoskeletal system was
clinically evaluated as normal. His report of medical
history of same date shows that he denied ever having had or
currently having swollen or painful joints, arthritis,
rheumatism, or a bone, joint or other deformity. No
complaints or diagnosis of a bilateral hip disorder, to
include arthritis, were noted at the time.
The veteran’s service medical records show no complaints of,
or treatment for, a bilateral hip disorder, to include
arthritis.
The veteran’s separation report of medical examination, dated
in September 1971, shows that his musculoskeletal system was
clinically evaluated as normal. No complaints or diagnosis
of a bilateral hip disorder were noted at the time.
The record also lacks any evidence of arthritis of the hips
becoming manifest to a degree of 10 percent or more within
one year from the veteran’s separation from active service.
The transcript of the June 1995 RO hearing shows that the
veteran indicated that all the joints of his body swelled and
ached during service, that he had been told that he had
arthritis, and that he was exposed to Agent Orange, during
service.
The Board finds the veteran’s claim to be not well-grounded.
The criteria for such a claim have not been fully met: there
is no competent medical evidence of record of a bilateral hip
disorder manifested during service, or within one year from
the veteran’s separation from active duty, or currently.
38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown,
7 Vet.App. 498, 506 (1995). In addition, there is no
evidence of record of the current manifestation of one of the
diseases attributable to Agent Orange exposure. 38 C.F.R.
§ 3.309(e) (1995).
The Board also finds that the veteran’s statement of medical
causation between alleged Agent Orange exposure and an
alleged inservice bilateral hip disorder are not probative of
the issue hereby on appeal because lay persons (i.e., persons
without medical expertise) are not competent to offer medical
opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit
v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2
Vet.App. 492 (1992).
Furthermore, lay assertions of medical causation cannot
constitute evidence to render a claim well-grounded.
Grottveit v. Brown, 5 Vet.App. 91 (1993). Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is “plausible” or “possible” is required. Id.
Where a claim is not well grounded it is incomplete, and VA
is obliged under 38 U.S.C.A. § 5103(a) (West 1991) to advise
the claimant of the evidence needed to complete his
application. Robinette v. Brown, 8 Vet.App. 69 (1995). In
this instance, the Board’s decision informs the veteran that
he needs to submit competent medical evidence of a currently-
manifested bilateral hip disorder and of a nexus between it
and an inservice occurrence or event, to include Agent Orange
exposure, in order for his claim to be well-grounded.
5. Service connection for a disorder of the feet, to include
arthritis,
either on a direct basis
or claimed to be due to Agent Orange exposure
The veteran’s entrance report of medical examination, dated
in September 1967, shows that his feet were clinically
evaluated as normal. His report of medical history of same
date shows that he denied ever having had or currently having
arthritis, rheumatism or foot trouble. No complaints or
diagnosis of a disorder of the feet, to include arthritis,
were noted at the time.
The veteran’s service medical records show no complaints of,
or treatment for, a disorder of the feet, to include
arthritis.
The veteran’s separation report of medical examination, dated
in September 1971, shows that his feet were again clinically
evaluated as normal. No complaints or diagnosis of a
disorder of the feet, to include arthritis, were noted at the
time.
The record also lacks any evidence of arthritis of the feet
becoming manifest to a degree of 10 percent or more within
one year from the veteran’s separation from active service.
In a statement dated in October 1994, a private general
surgeon indicated that the veteran had complained of
arthralgia of the feet, and that the veteran attributed it to
Agent Orange exposure. No diagnosis of a currently-
manifested disorder of the feet, to include arthritis, was
noted, however.
The Board finds the veteran’s claim to be not well-grounded.
The criteria for such a claim have not been fully met: there
is no competent medical evidence of record of a disorder of
the feet manifested during service, or within one year from
the veteran’s separation from active duty, or currently.
38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown,
7 Vet.App. 498, 506 (1995). In addition, there is no
evidence of record of the current manifestation of one of the
diseases attributable to Agent Orange exposure. 38 C.F.R.
§ 3.309(e) (1995).
The Board also finds that the veteran’s statement of medical
causation between alleged Agent Orange exposure and an
alleged inservice disorder of the feet are not probative of
the issue hereby on appeal because lay persons (i.e., persons
without medical expertise) are not competent to offer medical
opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit
v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2
Vet.App. 492 (1992).
Furthermore, lay assertions of medical causation cannot
constitute evidence to render a claim well-grounded.
Grottveit v. Brown, 5 Vet.App. 91 (1993). Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is “plausible” or “possible” is required. Id.
Where a claim is not well grounded it is incomplete, and VA
is obliged under 38 U.S.C.A. § 5103(a) (West 1991) to advise
the claimant of the evidence needed to complete his
application. Robinette v. Brown, 8 Vet.App. 69 (1995). In
this instance, the Board’s decision informs the veteran that
he needs to submit competent medical evidence of a currently-
manifested disorder of the feet and of a nexus between it and
an inservice occurrence or event, to include Agent Orange
exposure, in order for his claim to be well-grounded.
6. Service connection for a disorder of the digestive
system,
to include gastritis, esophagitis and ulcers
The veteran’s entrance report of medical examination, dated
in September 1967, shows that his abdomen and viscera were
clinically evaluated as normal. His report of medical
history of same date shows that he denied ever having had or
currently having frequent indigestion or any stomach, liver
or intestinal trouble. No complaints or diagnosis of a
disorder of the digestive system were noted at the time.
The veteran’s service medical records show no complaints of,
or treatment for, a disorder of the digestive system.
The record also lacks any evidence of a duodenal ulcer
becoming manifest to a degree of 10 percent or more within
one year from the veteran’s separation from active service.
The veteran’s separation report of medical examination, dated
in September 1971, shows that abdomen and viscera were again
clinically evaluated as normal. No complaints or diagnosis
of a disorder of the digestive system were noted at the time.
The first evidence of any digestive system problems consists
of a private medical record, dated in April 1994, almost 23
years after the veteran’s separation from active military
service. This record shows complaints of gastritis,
esophagitis, nausea, vomiting and diarrhea. The only
diagnosis entered in said record, however, was infectious
diarrhea.
In a statement dated in October 1994, a private general
surgeon indicated that the veteran had been previously
treated for gastritis and esophagitis in the past. He
offered, however, no further comment.
A private medical record, dated in December 1994, shows
complaints of cough, cold, and epigastric distress.
A private medical record, dated in February 1995, shows
complaints of epigastric distress, or pain in the stomach.
It was noted that an upper endoscopy would be done.
A private report of operation, also dated in February 1995,
shows that the veteran underwent an
“esophagogastroduodenoscopy” with biopsy. According to this
report, the esophagus appeared normal, the esophagogastric
junction showed no abnormalities, the distal stomach showed
some mild gastritis, a healing duodenal ulcer was noted,
there was marked erythema of the duodenum, and the larynx
showed no abnormalities. The postoperative diagnosis was
duodenal ulcer, healing.
A private anatomical pathology report, also dated in February
1995, shows that pathologic examination of two fragments of
gastric mucosa revealed a diagnosis of chronic active
superficial gastritis with colonization by “helicobacter”
pylori.
The transcript of the June 1995 RO hearing shows that the
veteran’s testimony included the following allegations:
1. He received outpatient medical
treatment for acid indigestion during his
last two years of active service, but he
was never hospitalized.
2. He was first hospitalized for an
endoscopy approximately 15 to 18 years
after service. At that time, he was
having the same symptoms he had had
during service. “Ulcers” were found in
his stomach.
3. Eight to twelve months after the
first hospitalization, he was again
admitted to a private hospital, this time
for more tests.
4. The “condition” of the digestive
system had currently improved with
medication.
The Board finds the veteran’s claim to be not well-grounded.
The criteria for such a claim have not been fully met: there
is no competent medical evidence of record of a disorder of
the digestive system manifested during service, or of a nexus
between the currently-manifested disorder of the digestive
system and an inservice occurrence or event. In addition, as
indicated above, there is no evidence of record of a duodenal
ulcer becoming manifest to a degree of 10 percent or more
within one year from the date of the veteran’s separation
from active service. 38 U.S.C.A. § 5107(a) (West 1991);
Caluza v. Brown, 7 Vet.App. 498, 506 (1995).
The Board also finds that the veteran’s statement of medical
causation between the currently-manifested disorder of the
digestive system and alleged inservice occurrences or events
are not probative of the issue hereby on appeal because lay
persons (i.e., persons without medical expertise) are not
competent to offer medical opinions. Moray v. Brown, 5
Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91
(1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
Furthermore, lay assertions of medical causation cannot
constitute evidence to render a claim well-grounded.
Grottveit v. Brown, 5 Vet.App. 91 (1993). Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is “plausible” or “possible” is required. Id.
Where a claim is not well grounded it is incomplete, and VA
is obliged under 38 U.S.C.A. § 5103(a) (West 1991) to advise
the claimant of the evidence needed to complete his
application. Robinette v. Brown, 8 Vet.App. 69 (1995). In
this instance, the Board’s decision informs the veteran that
he needs to submit competent medical evidence of a nexus
between the currently-manifested disorder of the digestive
system and an inservice occurrence or event, in order for his
claim to be well-grounded.
7. Service connection for a skin disorder, claimed to be due
to
Agent Orange exposure
The veteran’s entrance report of medical examination, dated
in September 1967, shows that his skin was clinically
evaluated as normal. His report of medical history of same
date shows that he denied ever having had or currently having
skin diseases. No complaints or diagnosis of a skin disorder
were noted at the time.
The veteran’s service medical records show no complaints of,
or treatment for, a skin disorder .
The veteran’s separation report of medical examination, dated
in September 1971, shows that his skin was again clinically
evaluated as normal. No complaints or diagnosis of a skin
disorder were noted at the time.
In a statement dated in October 1994, a private general
surgeon indicated that the veteran had complained of a
generalized rash that occurred at times, but that was,
according to the examiner, not present on the examination.
The transcript of the June 1995 RO hearing shows that the
veteran’s testimony included the following allegations:
1. He was exposed to Agent Orange in
DaNang, Vietnam, and around Panama. The
exposure occurred when there was “a big
spillage” of Agent Orange 30 to 40 feet
from where he was stationed, and he got
“down wind.”
2. He did not seek medical attention
after the exposure to Agent Orange
because he did not have any immediate
reaction to it.
3. Two or three days after the exposure,
however, he noticed a rash on his
shoulders, back, sides, arms, face and
neck. He was given cream to rub on.
4. Other people got exposed, suffered
the same rash and got his same treatment.
5. When he got out of Vietnam, he still
had the rash, which “would periodically
flare up.”
6. When he got back to the States, he
did not get rid of the rash, so he sought
-and obtained- treatment for it.
7. He was still having problems with the
rash, “every now and then,” but not as
severe as other cases he had seen.
8. He was still currently using an
ointment to treat the rash. He had never
been hospitalized for it, however.
9. The skin sometimes broke out in
little pustules on his back, shoulders
and neck, maybe twice a year. He treated
it with “Cortisone salve.”
The Board finds the veteran’s claim to be not well-grounded.
The criteria for such a claim have not been fully met: there
is no competent medical evidence of record of a skin disorder
manifested either during service, or currently. 38 U.S.C.A.
§ 5107(a) (West 1991); Caluza v. Brown, 7 Vet.App. 498, 506
(1995). In addition, there is no evidence of record of the
current manifestation of one of the diseases attributable to
Agent Orange exposure. 38 C.F.R. § 3.309(e) (1995).
The Board notes that the veteran’s June 1995 statements to
the effect that he was treated for a skin condition or
disorder during service are simply not supported by the
evidence of record. As indicated above, his service medical
records, to include his entrance and separation reports of
medical examination and medical history, show no complaints
or treatment for a skin disorder.
The Board also finds that the veteran’s statement of medical
causation between alleged Agent Orange exposure and an
alleged inservice skin disorder are not probative of the
issue hereby on appeal because lay persons (i.e., persons
without medical expertise) are not competent to offer medical
opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit
v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2
Vet.App. 492 (1992).
Furthermore, lay assertions of medical causation cannot
constitute evidence to render a claim well-grounded.
Grottveit v. Brown, 5 Vet.App. 91 (1993). Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is “plausible” or “possible” is required. Id.
Where a claim is not well grounded it is incomplete, and VA
is obliged under 38 U.S.C.A. § 5103(a) (West 1991) to advise
the claimant of the evidence needed to complete his
application. Robinette v. Brown, 8 Vet.App. 69 (1995). In
this instance, the Board’s decision informs the veteran that
he needs to submit competent medical evidence of a currently-
manifested skin disorder and of a nexus between it and an
inservice occurrence or event, to include Agent Orange
exposure, in order for his claim to be well-grounded.
ORDER
1. Service connection for a left knee disorder, to include
arthritis, either on a direct basis or claimed to be due to
Agent Orange exposure, is denied.
2. Service connection for a right knee disorder, to include
arthritis, either on a direct basis or claimed to be due to
Agent Orange exposure, is denied.
3. Service connection for a bilateral ankle disorder, to
include arthritis, either on a direct basis or claimed to be
due to Agent Orange exposure, is denied.
4. Service connection for a bilateral hip disorder, to
include arthritis, either on a direct basis or claimed to be
due to Agent Orange exposure, is denied.
5. Service connection for a disorder of the feet, to include
arthritis, either on a direct basis or claimed to be due to
Agent Orange exposure, is denied.
6. Service connection for a disorder of the digestive
system, to include gastritis, esophagitis and ulcers, is
denied.
7. Service connection for a skin disorder, claimed to be due
to Agent Orange exposure, is denied.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
The record shows that the RO attempted to locate these records. However, personnel from the private
physician’s office in question indicated, in a statement received at the RO in April 1995, that the 1986
information was not enclosed because it was not present in the medical record at the time the request was
received.
Degenerative joint disease, or osteoarthritis, has been defined by the Court as arthritis of the middle age,
characterized by degenerative and sometimes hypertrophic changes in the bone and cartilage of one or more
joints and a progressive wearing down of “apposing” joint surfaces with consequent distortion of joint
position usually without bony stiffening. Giglio v. Derwinski, 2 Vet.App. 560, 561 (1992); see also,
Bierman v. Brown, 6 Vet.App. 125, 126 (1994).
Arthralgia means pain in a joint. Lichtenfels v. Derwinski, 1 Vet.App. 484, 488 (1991); Mykles v. Brown, 7
Vet.App. 372, 373 (1995).
The veteran only indicated that his father had or had had stomach trouble. This statement, while irrelevant
to the issue on appeal, might suggest the possibility of a congenital disorder of the digestive system.
Congenital disorders cannot be service-connected. 38 C.F.R. § 4.9 (1995).
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